Felon in Glasgow police shooting awaits gun sentence

CHARLESTON, W.Va. --A man charged with shooting a Glasgow police officer is to be sentenced on a related charge in federal court Monday, even though a Kanawha County judge has found him incompetent to stand trial.

Nickey Don Smith II, 37, has been held in the South Central Regional Jail since he was arrested and charged with malicious wounding in the shooting of Steven Smith in December 2011. The two are not related.

Nickey Smith allegedly shot the Glasgow officer in the arm and chest with a sawed-off shotgun when the officer went to Nickey Smith's Glass Fire Lane home to help investigate a burglary report.

The blast shattered Steven Smith's right arm and peppered a lung and his liver with shotgun pellets. The officer has had three complex surgeries to rebuild his arm.

After reviewing two psychological evaluations, Kanawha Circuit Judge Carrie Webster found that Nickey Smith was not competent to stand trial on the malicious-wounding charge. Webster said Smith should be sent to a hospital until he is able to participate in his defense.

However, Smith has remained in jail awaiting sentencing because he pleaded guilty to a federal charge of being a felon in possession of a firearm in connection to the alleged shooting. Smith was convicted in February 2002 of unlawful wounding, a felony -- meaning he was barred from possessing a firearm.

According to federal court documents, psychologists found that Smith was suffering from delusional and personality disorders when the alleged shooting occurred. The evaluations are sealed, but some documents reveal parts of what psychologists found.

A pre-sentencing report in federal court included a psychological evaluation by Dr. Fred Krieg, concluding that Nickey Smith "is not competent to stand trial and to assist in his defense," and that the defendant at the time of the offense "was clearly suffering from a Delusional Disorder, Persecutory Type that impaired his judgment," court documents state.

In a "forensic evaluation" requested by Richard Holicker, Nickey Smith's attorney in circuit court, Dr. Timothy Saar said Smith has a "Delusional Disorder" and is not competent to stand trial.

"He is in need of a competency restoration, in-patient program. With proper medication and if he responds in a positive manner, it is likely that Mr. Smith will become competent within six months," Saar wrote in the report, according to court documents.

In another report, though, Dr. David Clayman found that Smith "has the capacity to rationally assist his attorney, if he so chooses."

Clayman found that Smith suffers from "Personality Disorder" with "paranoid, narcissistic and antisocial features." He also said Smith "was cooperative and revealed an understanding of the adjudicatory process. He was able to explain the differences in his status in federal and state courts. He knew the possible sentences," according to federal court documents.

Lex Coleman, Smith's federal court attorney, told U.S. District Judge John Copenhaver that, despite the psychological evaluations, "he was satisfied with the defendant's mental competency to understand the proceedings against him and assist his attorney in his defense at the time of the entry of his guilty plea."

On May 17, Holicker filed a motion asking Webster to adopt Clayman's finding that Smith was competent to stand trial.